Abstract

In this article I examine the question whether, as a matter of legal policy, unconscious plaintiffs should be compensated for loss of amenities of life. Under current South African law, the position remains to be authoritatively defined by the Supreme Court of Appeal. This is so because there are two conflicting decisions of the High Court, namely Gerke v Parity Insurance Co Ltd 1966 (1) SA 484 (W) in which Ludorf J, who, being persuaded by the position in English law, decided that such loss is compensatable, and Collins v Administrator, Cape 1995 (4) SA 73 (C) where Scott) declined to follow the reasoning of Ludorf J in the Gerke case and rejected the basis under which English law compensates such loss. I further examine the position of the law on this issue in England, New Zealand, Canada, Australia, United States, Germany and France. The investigation reveals that in all these jurisdictions, except Australia and the United States, loss of amenities of life is a compensatable item of claim. There is a division of judicial opinion in the various jurisdictions of United States where some jurisdictions deny recovery under this item of loss while others recognise it as a real loss and compensate it fully. In Australia, confusion abounds among lawyers over the decision of the Australian High Court in the case of Skelton v Collins [1966] 115 CRL 94 where it is popularly understood that that court decided that loss of amenities of life is not compensatable loss. My own understanding of that case is that the Australian High Court did not reject, as a matter of legal policy, compensation for loss of amenities of life, but rather that the court was essentially concerned with the question of the quantum of damages recoverable under such loss. In conclusion I recommend for South Africa that the decision of Scott J in the Collins case should not be followed. Short of loss of life itself, loss of consciousness is one of the severest losses that a person can suffer; such loss should be recognised and compensated fully through the medium of the law; and our Bill of Rights enjoins our courts to respect life, albeit the life of an unconscious person.